Adoption: Narrative Analysis

I. INTRODUCTION

Adoption can be a very useful legal relationship option for some relative headed families, and not at all palatable for others. It is essential that the caregiver understand all the ramifications, including the financial ones, of adoption and other options, like legal custody or guardianship, before pursuing one. 

The legal concept of adoption of a child involves a judicial proceeding in which a birth parent is either proven unfit and his or her parental rights are terminated or he or she voluntarily surrenders those rights. Once parental rights are terminated, either voluntarily or involuntarily, all of the birth parents' rights and responsibilities are severed, and another individual, for purposes of this analysis, a relative caregiver, becomes the parent in the eyes of the law. In order for a child to be adopted, generally both birth parents rights must be terminated, unless one parent is deceased, a step parent is adopting or in some states, paternity was never established and therefore need not be terminated. Upon termination of parental rights, the birth parent loses all of his or her rights, including the right to visit the child, and responsibilities, such as child support. Children can no longer inherit from the birth parent’s estate, are no longer allowed to be included on any private health insurance policy, and are not entitled to any benefits, such as military or disability. The relative caregiver’s relationship to the child changes too. A grandmother, for example, becomes “mom”. As an adoptive parent, access to services on behalf of the child is the same as for any birth parent, which can simplify many problems. If the grandparent has private health insurance, the child can now be included on that policy. The child would also be entitled to any other benefits due to them as the child of the adoptive parent. Furthermore, and a very attractive feature for some grandfamilies, the birth parents cannot simply reappear one day and go to court to reclaim parental rights and responsibilities, as they can with other legal relationship options. 

Although adoption also involves families outside of the child welfare system, adoption is one of the primary avenues for creating permanence for children in long-term foster care and therefore is a heavily legislated area. We will look at state laws that provide preferences for relatives seeking to adopt children, in addition to adoption assistance programs, which are only available to those children exiting foster care. These assistance programs provide ongoing financial subsidies to “special needs” children adopted from the child welfare system. Finally, open adoption laws will be analyzed. Open adoption laws allow the relative caregiver, birth parents, and child to develop an agreement for post-adoption contact. 

II. SUMMARY AND COMPARISON OF EXISTING STATE LAWS

Relative Preference

A review of the statutes of the fifty states and the District of Columbia reveal that only nine states have explicit statutory provisions giving preferences to relatives in adoptions. As with preferences in relative foster care placements, the language and meaning of these statutes differ widely. Three states specifically provide that relatives are preferred to non-relatives in adoptions: Alabama (“may adopt” after having lived with the relative for a year), Kansas (“shall give preference”), and Nebraska (“preference shall be given to relatives”). Two other states require that an attempt be made to allow relatives to adopt: Alaska (attempt to locate and investigate a relative before identifying an adoptive placement) and Texas (“shall attempt”). Four states require that relatives “shall be considered” for adoptive placement: Indiana, Minnesota , Ohio , and Wisconsin. 

Four additional states give general placement preferences to relatives, which could arguably include adoptions: Arkansas (“shall be given”), Idaho (“may consider”), Illinois (“may place”), and Nevada (“shall give”).

Other state laws facilitate relative adoptions, but do not explicitly prefer them. Five states specifically allow parents or guardians to agree to surrender their children to relatives for adoption (Connecticut, Georgia, Virginia, Louisiana, and Missouri); and California calls for an “adoption fast track” for relatives wishing to adopt from the foster care system. Fourteen states make it easier for relatives to adopt by allowing courts to waive or by simply exempting relatives from certain requirements:

State	Requirement Exemption
Arizona	pre-adoptive investigation
Colorado	assessment and approval requirements
Delaware	placement for adoption or supervision by child welfare department or licensed agency
Iowa	child in residence with perspective adoptive parent and pre-placement investigation
Kentucky	placement for adoption by child placing institution or agency or written approval of the Secretary
New Jersey	preliminary hearing
New Mexico	heightened review of placement for independent adoption
North Carolina	pre-placement assessment
Oregon	home study requirements waiver
Rhode Island	pre adoptive report
South Carolina	investigation or report, accounting of disbursements, final hearing time requirement, and appointment of independent counsel
Tennessee	residency requirement
Utah	pre-placement adoptive evaluation
Vermont	pre-placement evaluation

The remaining eighteen states statutory codes do not include any type of language giving preferences or other considerations to relatives who are adopting children. These states may be implementing preferences in policy and practice, but their codified laws do not explicitly include them: District of Columbia, Florida, Hawaii, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, New York, North Dakota, Oklahoma, Pennsylvania, South Dakota, Washington, West Virginia, and Wyoming.

Adoption Assistance

Adoption assistance payments may be available to relative caregivers who choose to adopt the children in their care. All states provide adoption assistance on behalf of certain children who are adopted from the child welfare system. States may receive federal reimbursement, through Title IV-E of the Social Security Act, for a portion of the adoption assistance payments made on behalf of very poor children who have “special needs.”[1] “Special needs” are defined by the state, but generally include characteristics or conditions that make it difficult to place the child with adoptive parents without a subsidy.[2] As with foster care, Title IV-E eligibility can make a difference in the amount of the subsidy available and in whether other benefits, like eligibility for Medicaid, come with the subsidy. 

Of the 50 states and the District of Columbia, all but two states (Delaware and Georgia) have provisions in their state laws providing for adoption assistance. These provisions address various aspects of the state’s program, including how they define special needs, compute the monthly payment, and whether assistance with recurring expenses is available. The National Council on Adoptable Children has comprehensive profiles for each state’s program, which include not only their state law provisions, but also each state’s policy and practice. A chart comparing all 50 states is also available on its website. Click here for that cite.

Open Adoption

Thirty states have some type of statute concerning open adoption. Generally, as part of an adoption, these laws allow the prospective relative adoptive parent and birth parents to develop an agreement so the child can have post-adoption contact with the birth parents, siblings and/or other relatives. Although enforceable by the courts, invalidation of the adoption is never a possible remedy for failure to adhere to an open adoption condition, such as visitation. Eighteen states have some variation of this classic version of the law: Arizona, California, Indiana, Kentucky, Maine (sibling contact only) Maryland, Massachusetts, Minnesota, Montana, Nevada, New Mexico, Oklahoma, Oregon, Rhode Island, South Dakota, Washington, Virginia, and West Virginia. In three states, the laws specify that these agreements are non-binding and therefore not enforceable by the courts: Ohio, Tennessee, and Vermont. Six states specifically allow open adoptions only for children who have been in state child welfare custody: Connecticut, Florida, Louisiana, Nebraska, New Hampshire, and New York. 

Additionally, four states have laws that concern post-adoptive visitation with birth parents and siblings. Although these laws are not what are typically known as open adoption laws, they concern post-adoption visitation and are therefore closely related. In Alaska, the law states that nothing in its statute prevents visitation between an adoptee and his or her birth parents or other relatives.[3] In Arkansas, lawmakers decided to explicitly state that sibling visitation must not terminate after a child has been adopted from state custody.[4] Given the thousands of tragic anecdotes of children being denied contact with their siblings after an adoption, this type of declaration in the law could be critical for brothers and sisters who want to continue to be part of each other’s lives. Illinois goes further by requiring “Post Adoptive Reunion Services” to facilitate contact between adoptees and their siblings when adopted or still in the care of the child welfare system.[5] Finally, North Dakota requires that all agreements concerning the future conduct of any party with respect to the child be attached to the court’s report in an adoption proceeding.[6]

III. LEGISLATIVE TRENDS

The legal concept of adoption dates back only about 150 years. One of the earliest statutes was enacted in Massachusetts in 1851. Only since 1929 have all states allowed legal adoption. Adoption laws were not meant to interfere with the practice of relatives assuming responsibility for children whose parents could not care for them.[7] However, because almost a fourth of the foster care system is comprised of children in relative care and adoption has long been legally recognized as a preferred avenue for creating permanence for children, relatives are often encouraged by the child welfare system to adopt. Furthermore, since children have been shown to thrive in relative care, a subset of laws granting relatives preference in adoptions has arisen. In some cases, adoption well suits the needs of all involved. Caregivers may continue to get financial assistance through adoption subsidies and the child may have a greater sense of belonging, in addition to other advantages. 

Open adoption laws originated roughly a decade ago and have seen a growing trend. The number of these statutes has roughly doubled in the last five years and more are undoubtedly on their way. These laws are not designed solely for relative caregivers, but they can suit the needs of these families well. The enforceable contract can make birth parents more comfortable with the adoption since it provides for ongoing visitation, contact with the child or at the very least updates, such as yearly photos. Birth parents remain, in a sense, part of the family.

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and available for all users in the state law and legislation database.  That database, as well as the other information on this website, is an ongoing project.  If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author:  Ana Beltran, Special Advisor, Generations United, at abeltran@gu.org.   

[1] The federal Title IV-E program is open to those adoptive children who meet Aid to Families of Dependent Children (AFDC) criteria; receive Supplemental Security Income (SSI); are babies born to minor parents who are in foster care; and children who received Title IV-E Adoption Assistance in a previous adoption, but whose original adoption was dissolved or the adoptive parents died. Children who do not gain eligibility through one of these methods may be non Title IV-E-eligible and receive a state subsidy financed with state or local funds (i.e., without federal reimbursement). The benefits provided under state programs are often—but not always—similar to benefits provided using federal funds.

[2] 42 U.S.C. section 673(c).

[3] Alaska Stat. section 25.23.130.

[4] Ark. Code Ann. section 9-9-215.

[5] 20 Ill. Comp. Stat. 505/7.5.

[6] N.D. Cent. Code section 14-15.1-05.

[7] Schwartz, M. (1996). Reinventing Guardianship: Subsidized Guardianship, Foster Care, and Child Welfare, Review of Law & Social Change, 12,441-82.